Loose Canons

The Italian word dietrismo translates literally as “behind-ism,” but it means more than that. It expresses the Italian belief that things are never as they seem, that there is always a story behind the public story. The powerful know what’s really happening and the let the rest of us see what they want us to see. In a nation of conspiracy theorists, dietrismo can apply to politics, soccer leagues, or the Vatican.

On December 2, 2010, L’Osservatore Romano published an interesting piece of dietrismo by Bishop Juan Ignacio Arrieta, secretary of the Pontifical Council for Legislative Texts and a preeminent canon lawyer. According to Arrieta, in February 1988—four years after Fr. Gilbert Gauthe was prosecuted in Louisiana for sexual abuse—Cardinal Joseph Ratzinger, then prefect of the Congregation for the Doctrine of the Faith (CDF), wrote to Cardinal José Rosalío Castillo Lara, president of what was then called the Pontifical Commission for the Authentic Interpretation of the Code of Canon Law, asking for a change in church law. Ratzinger sought a simpler canonical criminal process to deal with sexually abusive priests. Castillo Lara politely declined.

At the time, the CDF handled “administrative laicization” requests from priests around the world. Such petitions were granted as a matter of mercy by the church for men who no longer wanted to function as priests. Laicization requests had poured in after Vatican II, and Pope Paul VI (d. 1978) regularly—and speedily—granted them. But Pope John Paul II put an end to that practice. He believed slowing the process might make these men rethink their decision. John Paul ruled, soon after becoming pope,that no priest under forty could be granted an administrative laicization. (Full disclosure: on occasion, I’ve done pro-bono work for the Vatican reviewing pleadings in sovereign-immunity cases.)

In 1988, the CDF was fielding lots of laicization requests—many from accused American priests—and being pressured by U.S. bishops to grant them quickly. But Ratzinger found that objectionable. In his L’Osservatore article, Arrieta explains that Ratzinger’s problem was the “natural repugnance of a justice system to grant as a matter of grace (dispensation from the obligations of priesthood) something that should, instead be imposed as a punishment (dismissal, as a penalty, from the priesthood).” Ratzinger wanted to make it clear that offending priests were receiving canonical punishment, not mercy.

So Ratzinger asked the church’s chief canon lawyer, “Can’t we streamline the penal process to deal with these men?” Castillo Lara’s response was lawyerly: The law will work if the bishops use it, but they are not using it. “The involved bishops have not first exercised their judicial authority to properly punish such crimes, even for the protection of the common good. The problem is not so much one of juridic procedure but of responsible exercise of a bishop’s governing authority.” Castillo Lara, too, had been hearing bishops complain that they could not use the canonical criminal system because it was too unwieldy. The fact that he mentions “the involved bishops” in his letter indicates that he thought bishops should have held abusive priests responsible in the canonical criminal trials provided for in the Code. Ratzinger replied courteously, and that was the end of the exchange.

Was Castillo Lara right? Were U.S. bishops not doing their jobs? Yes and no. While it’s true that many U.S. bishops had come to the conclusion that administrative laicization was the best way to handle sexually abusive priests, it’s not as though they didn’t have their reasons.

First, the Code of Canon Law had been revised in 1983, so at the time of Ratzinger’s writing, it was still unfamiliar to many canonists and bishops—especially with respect to criminal procedures. American canonists who were trained in the old Code (those who graduated in the 1960s, ’70s, and early ’80s) simply didn’t know the new criminalprocess. And those who were trained in the revised Code focused almost exclusively on marriage cases. But the new Code also removed certain episcopal powers that in the past would have made it easier to get rid of abusive priests. For example, malefactor priests could no longer be suspended on the basis of a bishop’s informed conscience, and a bishop could no longer on his own petition for a priest’s administrative laicization—the priest had to make the request. What’s more, the ’83 Code instructed that in criminal cases pastoral solutions were preferable to judicial ones, and that a priest’s mental disturbance was a mitigating factor in imposing criminal penalties (such as laicization). Pedophilia certainly seemed to qualify.

Second, bishops feared that Rome wouldn’t uphold judicially imposed laicizations as a penalty for sexual abuse. Why? Their experience with the Roman Rota, the tribunal that would have heard appeals from U.S. canonical criminal trials, had not been encouraging. The Rota had a long history of slapping down U.S. tribunals for sloppy legal reasoning—primarily in annulment cases. How much harsher would the Rota be in penal cases, which were much more complicated than marriage cases? And while Rota decisions are not widely known—they are not alwayspublished—bishops were aware that the Rota had overturned diocesan sentences of laicization. For example, in 1994 the Rota overturned a Dublin tribunal’s decision to laicize Fr. Tony Walsh, Ireland’s most notorious pedophile. On appeal, the Rota ordered the sentence substituted with a milder one: ten years of service in a monastery—and no laicization. As late as 2002, U.S. bishops’ spokesman Msgr. Francis Maniscalco acknowledged that “some suspended priests have won reinstatement from the Vatican.”

Third, and perhaps decisively, the administrative laicization process was faster. Canonical criminal trials can drag on for years, and are inevitably appealed to Rome. Take, for example, the case of the recently laicized Charles Kavanagh in the Archdiocese of New York. In 2003, a diocesan review board found him credibly charged with misconduct in the 1980s, and he was suspended. Kavanaugh challenged the decision, requesting a formal canonical trial in another diocese. When that tribunal found him guilty, he appealed again. That tribunal also found him guilty, and he was laicized, but only in December 2010. Imagine the bishops taking that route with every credibly accused priest in America.

So you can see why Ratzinger wanted Castillo Lara to simplify the penal process. Just a few months after their 1988 exchange, Pope John Paul II promulgated his apostolic constitution, Pastor bonus, which restructured the Roman curia, giving exclusive jurisdiction over “more serious crimes committed against morals” to the CDF. Arrieta argues that John Paul’s decision to reserve an entire category of crimes to the CDF indicates that he realized the system wasn’t working. Yet, as Arrieta notes, Pastor bonus was not all that clear. It didn’t spell out the “more serious crimes committed against morals” over which that the CDF had sole competency. Those more specific norms were not promulgated until 2001—thirteen years later—a period during which the U.S. bishops handled and mishandled the sexual abuse crisis on their own (with some minor modifications to the Code for the United Statesfrom Rome). Defenders of Ratzinger often point out that it wasn’t until those norms were clarified in ’01 that the CDF had jurisdiction over abuse cases. But even that’s not so clear. The 1962 document Crimen sollicitationis, which Arrieta fails to mention in his article, could be read as giving CDF authority over the crime of clerical sexual abuse of minors nearly forty years earlier.

Ratzinger’s reluctance to use administrative laicization instead of the penal process might also explain the CDF’s response to a few U.S. cases that made headlines last year. Why, it was asked, didn’t Ratzinger act more quickly to grant certain abusive priests’ requests for laicization? Now we know: Ratzinger thought that would be a misuse of the system. That’s why the CDF instructed the Archdiocese of Milwaukee to hold a full canonical trial for Fr. Lawrence Murphy rather than grant him an administrative laicization (although it doesn’t explain why then-Archbishop Tarcisio Bertone of the CDF later reversed that decision). It also explains why the CDF initially refused laicization requests for Stephen Kiesle of Oakland—in addition to the fact that Kiesle was under forty when he first asked to be laicized. While it’s true that neither Murphy nor Kiesle was in active ministry when their requests got to the CDF, it hasn’t always worked out that way. Dublin’s Fr. Tony Walsh continued to be arrested for sexual abuse after the Rota overturned his laicization sentence in 1994. Two years later, Ratzinger issued a decree of administrative laicization against him. Why Ratzinger broke his own rule for Walsh but not for Kiesle—who was convicted of abuse—remains unclear.

Soon after Arrieta’s article appeared in December, several commentators floated the theory that the Vatican had timed it to cushion the blow of a soon-to-be-released report on abusive priests in Munich, where Ratzinger had served as bishop. In fact, the piece had been banging around the corridors of the Vatican for almost two years while officials debated whether publishing it would do more harm than good. Of course, given the Vatican’s underwhelming record of transparency throughout the crisis—and its time-honored tradition of botching P.R.—who could be blamed for speculating about a darker motive? Journalists abhor a vacuum. What they loathe even more is a story that doesn’t add up.

And finally, that may be the most important lesson of this mini-revelation: there is no single explanation for the crisis. Take, for example, the recently published 1997 letter from the Vatican ambassador to Ireland to the nation’s bishops warning them about their mandatory-reporting policy. The nuncio related the Congregation for Clergy’s sense that such a practice might run afoul of canonical protections for accused priests. On its face, not a surprising concern. But at the time the congregation was headed by Cardinal Dario Castrillon Hoyos, who in 2001 praised a French bishop for not reporting a known abuser to the police. Why was his congregation weighing in—rather than, say, the CDF or the church’s chief canonist—and was its opinion determinative? As with so many revelations about the scandal, it’s hard to say.

What we do know is that eventually a few curial officials came to understand the insufficiency of official responses to the scandal—and many more couldn’t or wouldn’t grasp its magnitude. Some bishops and their canonical advisers were flummoxed by the new Code; others looked the other way. The Ratzinger who in 1988 sought a speedier canonical process for handling abusive priests delayed decisions to remove them later. The same man who as a cardinal refused financial gifts from the Legion of Christ as pope allowed the order’s abusive founder Fr. Marcial Maciel to fade into a life of prayer and penance. By all accounts, Ratzinger’s awareness of the sexual-abuse crisis evolved over time, not always in a straight line, and often in conflict with other curial officials. Evidently Cardinal Angelo Sodano, John Paul’s powerful secretary of state, worked hard to frustrateinvestigations into the sexual abuse perpetrated by Maciel. We may never know whether or how Ratzinger fought to break Sodano’s blockade. Likewise, it seems improbable that we will ever know the full story of Ratzinger’s role in the reassignment of an abusive priest during his tenure as archbishop of Munich. The various currents of power in Rome can be overwhelming—even for a pope. This is a culture that, as the pope noted in his latest book of interviews, informed Benedict that he’d have to wear a white cassock in the manner of John Paul.

Obviously, there’s no shortage of blame to go around. The Catholic community deserves a fuller explanation of Rome’s reticence in laicizing known abusers. (In turn, church critics ought to acknowledge that cutting a molester loose doesn’t necessarily protect kids.) The pope could do that. He should do that. We need less “back story” and more openness. If there’s anything we can say with certainty about the crisis, it’s that secrecy does more harm than good. What if Ratzinger’s exchange with Castillo Lara had been published when it took place? The discussion that might have engendered among bishops, canonists, and the faithful could have saved the church—and her victims—from profound and enduring grief.

Comments

It seems to me like your problem, in a nutshell, is that Card. Ratzinger wanted to change the law but not to skirt it. That can be noble or terribly misguided depending on your perspective, but it's hardly mind-boggling.

It seems to me when reading about Ratzinger wanting to change the law that the whole procedure for the application and use of cannon law an outdated example of a clerical system that just does not work. The fact that Bishops all over the world did not protect our children from extreme predators is reason enough for the People of God to understand these laws as merely laws of men that certainly have developed in a way that show them as a means to power and not a means to ethical or moral governance. As for me, I have had it with the idea that canon law is at all meaningful for the productions of good governance or ethical behavior. There are too many men studying these methods of control rather than humbly learning to lead a people. Canon lawyers are causing more damage to the Church and society than they are worth. I believe the church would be better off training very few people in this field and that those they train should be 50 + % women. If we are going to have canon lawyers, perhaps it would be better that they were not clerics at all.

To my knowledge no American bishop suggested that victims of clerical sexual abuse or their parents should call the police when they were informed that crimes had taken place. Yet more than one bishop has notified the civil authorities when clerical theft of church funds was reported. Sadly many bishops aided and abetted clerical sex abusers by failing to act like good citizens. Unfortunately statutes of limitation protect them from prosecution.

First let me thank commonweal for providing a forum for us to say: I believe in God. I believe this is God's Church. I believe the church is not God. We have been betrayed not just by the priests who betrayed their office but even more so by the bishops world wide who failed to protect God's flock. It is still rare for a bishop to take responsibility. It is as yet more likely to hear responsibility placed elsewhere, towit; it started in the 1960s, it is that anti-catholic media, it is an American problem, a false prophet can still be an effective guide to youth, we got bad advise from psychiatrists, we did not know the extent of harm being done, more abuse is taking place elsewhere(public schools, homes, scouting, other religions and churches and my personal favorite, "where were the parents?"(like it is all your fault mom and dad for trusting us priests). Now we can trust them, with Law still where he is and Sadano still where he is and The LC/RC still in business and JPII being beatifide. We fixed it. Be docile to your priest's spirit as if to God. Go get more (evangalize). Forget the,"petty gossip". Forget the comparison to The Catholic Church being persecuted as the Jews in the holocost. We have plenty of outside enemies to persecute us, but the worst are the very infrastucture, wolves wearing beanies and rings, perhaps at times even the fisherman's ring.

"Canon lawyers are causing more damage to the Church and society than they are worth. I believe the church would be better off training very few people in this field . . . ."

This part of your post that I quoted is manifestly incorrect. Are you suggesting that Dr. Cafardi is causing damage to the Church? He's a canon lawyer, and he was the one that wrote the article. Many canon lawyers that have brought the weaknesses in the ecclesiastical judicial system to light and have worked to have these laws of men (which is what positive canon law really is) fixed, which they would not have done if they did not have the training.

Consider this analogy. Our secular legal system is flawed as well; does that mean we should throw the baby out with the bath water and get rid of it? How, exactly, would you defend yourself against the government if there were no juries, no trial, and no one to advocate on your behalf? Good luck with that. It's hard enough to try to defend yourself without counsel, and I have seen first hand many people attempt that and fail miserably.

I see that you are a physician or a surgeon. The medical system is flawed. Would we "be better off training very few people in this field"? Absolutely not. Sure, society may need to train less physicians and surgeons than are currently trained, but it would be incorrect to say that society should train "very few" physicians or surgeons. Having an untrained individual perform surgery on another or on his/herself would probably be more disastrous than self representation, though I admit that I have thankfully not had to witness that.

Perhaps we should not have many canonists, but as far as the present situation, we currently need to train more. There are not enough canonists at the present; though some tribunals ar adequately staffed, others remain understaffed and ill-prepared for criminal cases, let alone annulments. Among the many reasons that the sex abuse crisis endured (Dr. Cafardi points this out in his article, by the way) is because so few canonists were trained in penal law that bishops did not use their tribunals when presented with criminal behavior.

Having an effective ecclesiastical judicial system is not a panacea. There would still be, among other issues, the possibilities that sex abuse goes unreported and and that sex abuse goes unprosecuted (again not a problem of canon lawyers but a problem of those in charge), but with a well-functioning judicial system those in charge could no longer complain that they lacked the proper means. For those in charge that are really working to fix this problem (yes, they do exist), they would have the means to ensure that paedophiles would not be using ecclesiastical positions to abuse children further. As a side effect, there would be more canon lawyers working to demonstrate the flaws in the system. Perhaps then, after being presented with cogent arguments that the system needs changing to protect the members of the body of Christ, the legislators (not the lawyers, who have no power except for their logic) will change it.

The other suggestion in your post, to train more lay canonists, is a fine suggestion. Dr. Cafardi is one of them.

I agree with Mr. Madrid, this attitude that law and legal process can solve everything needs to end.

I've been disturbed by the abuses committed against children, but to be honest, I've been almost AS disturbed by the ensuing abuses of the Church and her methods.

It's VERY easy to be a Monday-morning armchair quarterback, especially the day after the SuperBowl. It's a VERY different case to be the coach of that SuperBowl team, facing 4th and 2, with 40 seconds left in the game, and a choice to kick a field goal for a tie, sending the game into overtime, or throw a pass for a touchdown that'll win the game now. If they miss the field goal, they almost certainly lose the game. If they fail to complete the pass, same result. Which play shall the coach call? And what proportion of fans will insist they could've done a better job if they'd been in the "hot seat"?

I do not decry the detailed analyses of the Church's legal system per se. We must always be willing to examine our past; we must be willing to critique ourselves when we've failed in some manner. At the same time, we must admit that we, created beings, live a fallen life. Let's say that we would demand that something of canon law or procedure should change. Or maybe we demand more "transparency" from the Vatican. Let's say Rome complies. What will we say in 6 months or 2 years when the changes that we demanded cause even greater problems? Will we humbly acknowledge our error?

Or will we point fingers once again and insist that someone who technically might've known better should've been more insistent?

I've been quite disappointed for some time by the fact that we choose to comment so poorly regarding our Church, but we can't seem to find time in our lives for prayer, penance, or personally solving problems.

Dennis Porch, writing above, displays his usual practical, common sense that must be the product of years of practicing medicine.

What the sexual abuse scandal has revealed is that canon law is NOT an instrument for protecting the rights of individuals or providing justice for the people of the church.

Canon law is primarily a dense, obtuse web of protection for the prerogatives of the clerical caste within the feudal church.

Experience demonstrates that the church over decades has encased its clerics within a cocoon of laws, most written in the style of a Monte Python skit, that essentially elevates priests and bishops into the rarefied regions of society of being able to act with impunity.

Porch is right to suggest that we need to thoroughly modernize and reform canon law, or discard it. Either it becomes an instrument for holding church members accountable or it should be dismantled and replaced with a code of ethics and morality for living out the Beatitudes.

I certainly agree with Paul Madrid. And I also agree with Jim Jenkins that Canon Law needs to be up-dated.

Although the preface to the 1983 Code (of Canon Law) acknowledged that there would be a need for changes---there was no procedure suggested by which to make the required changes. The supreme legislative authority provides no way to initiate changes in the church's universal canons. And the 1990 Code of Canon of the Eastern Churches is in the same bind.

What is then created, is a false impression of permanence, a sense that the present rules are perfect and beyond any need for modification or improvement. And there is a further roadblock thrown at the world's bishops as well. This is the proliferation of supplemental rules outside the Code. The Roman Curia spews out a steady stream of documents containing new norms. The effect is to encumber and obscure the canons with various executive "instructions" on how the rules are to be understood and applied, rather than to permit the updating and modification of the canons themselves.

Although both the Second Vatican Council and the 'Codes' affirm that the College of Bishops also possess supreme and full power over the universal church along with the pope in legislative action---there is presently no practical way for the college to exercise its legitimate lawmaking power.

It was during the pontificate of John Paul II that he eviscerated episcopal synods and made them into consultative gatherings and purely advisory to him. Synods are completely controlled by the pope and can act deliberatively only when and if the pope gives them the power to do so.

Needless to say, as so many of the above bloggers have commented---this whole process is a tangled web of huge proportions.

James Sugrue has a point. Apart from Canon Law (and with the Gospel in mind), why didn't a bishop call the police on his own when first informed of the actions of an abusive priest? It seems so basic when one thinks of an abused child and the internal injury or trauma he/she had to suffer. One wonders (over and over again) what fueled a bishop's morality back then, his sense of right and wrong? Was he upset yet chose to shelter the abusive priest from himself, from his own moral outrage? What held him back from expressing that outrage (and acting upon it by going to the police)? Or was there simply nothing in his heart in the first place to hold him back? Did he just erase all traces of the report or disclosure from his mind? Was it too hard for his conscience to bear? (But what about the victim underfoot, in his diocese?)

Also, did anyone guide bishops over these years, back and forth? Who advised them to step aside from the concerns of the victim? Were bishops capable of measuring the victim's trauma with their own sense of right and wrong? Did they really believe they could live through a child's abuse without deceit (and without hurting the child, the parents, the faithful)? In those days, I guess bishops didn't believe they held the life of a victim hostage to the abusive priest. It was as if bishops (back then) drank the tears of the victims they listened to from an abusive priest's palms (without any shame or rage at all). They still wanted abusive priests around ministering to kids.

One hopes and prays we get a better crop of bishops in the future. There is so much sexual abuse in the world, in families and institutions everywhere. Victims need the church to walk with them until it gets lighter and less dark for them to walk on their own.

This comment is probably only a slight trope on those which come before, but... It seems to me that the whole discussion in Rome took place against the backdrop of a very medieval legal theory (the Two Laws, civil & ecclesiastical), which desperately needs to be re-examined. On the one hand, we have a dire need in the Church for a rational and orderly climate of due process (in general, not only for these laicization cases). On the other hand, perhaps we should get out of the criminal law business altogether. It seems just an excuse to keep from prosecuting people in civil courts, where it counts. After all, what's to prevent someone 'sentenced' to 10 years in a monastery from simply ignoring the sentence and going somewhere else to live? There may be practical sanctions -- lack of salary or future retirement benefits, for example -- but some people are capable of overcoming those.

And then there is the cavalier fashion in which these "laws" get made or changed, without any real debate by a legislative body of any sort. The whole system is a mess, IMHO.

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About the Author

Nicholas P. Cafardi is a civil and canon lawyer. He is Dean Emeritus and Professor of Law at Duquesne University School of Law. Cafardi was one of the original members of the USCCB’s National Review Board for the Protection of Children and Youth. His book Before Dallas (Paulist Press) is a history of the clergy child sexual-abuse crisis in the United States.